A Sperm Donor’s Challenge and the Law’s Treatment of Genetic Connection

This New Jersey case has been on my mind for the last couple of days. I’m a little worried about my understanding of New Jersey law (and I’m hoping someone can check me on it) but it seems to highlight some of the odd ways the law can work.

Sheena and Tiara Yates are a lesbian couple who live in Pennsville, New Jersey. They have two children. Both were conceived using sperm from men (two different men) who were meant to be donors. As I understand the story, both men signed contracts that purported to give up any parental rights. Yet each man changed his mind and each sued for recognition as a legal parent and the right to spend time with the child conceived with his sperm. (Once you gain recognition as a legal parent, it’s far easier to claim an entitlement to time with the child.) One man won his case and the other has yet to be decided.

The question,, for me, is why do the men win. To clear way one thing at the outset–this is not a case where there was some misunderstanding about the initial arrangement. (Think Jason Patric.) The men signed agreements relinquishing rights, which means that they intended to be donors and not legal parents. But they changed their minds and apparently, under NJ law, they are entitled to do so. The question is why they are entitled to do so.

In trying to work this out, it’s worth noting that men aren’t always allowed to change their minds. This couple worked with a doctor but they actually did the insemination at home on their own. It seems that in NJ (as in many states) if instead, the doctor had performed the insemination in her/his office, then the men would not have parental rights. I’m not even sure if the signed releases would have been necessary.

Now why would the actual insemination by a doctor bar a subsequent challenge while insemination with the general supervision of a doctor does not? I don’t think there’s any real answer to that, except perhaps that one must abide by the letter of the law. That’s not saying there is any sense to the letter of the law, though, and that is really my question.

As the article notes, this insistence on actual insemination by a doctor drives up the costs, and thus places legal security outside the reach of those without the means to do it that way, as well as those who are not in a position to be aware of the finer points of the relevant statutes.

It is also possible that the marital status of the couple changes the outcome. (Again, I cannot tell if this is the law in NJ, but it is the law in some states.) So if it were a married couple engaging in exactly this conduct the law would be different then if it were an unmarried couple. Does that make sense? Why would it make sense?

What’s puzzling to me is that on one level this case seems to illustrate the importance of genetic connection. It is because the men can invoke genetic connection that they are freed from their agreement and can claim a role in the child’s life even if they haven’t played on in the past. But at the same time, the genetic connection can be overcome by things like insemination in a doctor’s office or the marriage of the parties–things that seem (to me, but I might be odd) like technical details. After all, if the genetic connection is so important, why on earth would the setting of the insemination matter?

I think this illustrates how incoherent and confused (and confusing) the law can be. Genetic connection is legally very important right up until it isn’t. It stops being important when it runs into some other doctrine, I guess.

In a tidier world we might think about what the genetic connection should count for and then write a nice coherent body of law that reflected that valuation in different settings. Tidy it might be, but it’s not New Jersey or, to be fair, any other state I know of……

Well, at least these children can truly say that they were fully loved and wanted by both their mother and their father and another mother as a bonus. But when the adult’s clash, is this in the child’s best interest? I wouldn’t think so. It will be interesting to see whose love for this child is greater. The mother(s) compromise to work with the father or the father’s compromise to let their child go. Solomon’s Wisdom? I’m really not a fan of “the law”.

I hate to sound cynical, but I don’t know if we can say that the children were fully loved by the men involved here. There may be many different motivations at work. Maybe it is true that they were “wanted” but that word troubles me.

That said, as is so often the case, much does depend on how the involved adults work things out. Perhaps the decision by the mothers not to appeal the first judgment suggests a willingness to work with the man involved and that might bode well for the child, even if from a lawyer’s point of view it might be frustrating because there is no review of the legal decision.

Can you describe what you mean by fully loved? What would a biological father in their position whose changing his mind and deciding he does not wish to relinquish his parental roll as described in his agreement…what would he have to do to earn you thought that he fully loved his child to get to support and take responsibility for them as a parent with shared custody? Remember he’s not taking the child away from the mother and her partner is not loosing contact with the child she’ll be doing what she was doing before.

Maybe there is something fitting about considering a “what is love” question on the eve of valentine’s day.

I suppose I don’t think it is possible to love someone you have never met or interacted with in any way. You can be very interested in getting to know them. You can have lots of other feelings, I’m sure. But to me, love requires knowing a person. And knowing a person requires an existing social relationship.

I know we speak of things like love at first sight and all that. And I’m really not willing to have a long discussion here about the meaning of/circumstances of love. I think that is too wildly personal and variable. But that’s what I was thinking when I made the comment so I will say that and no more.

This is another case that highlights the importance of contracts prior to donation. This should have all been worked out prior to donation. Now it becomes an ugly custody case that acts like a couple goimg through a divorce that tries to have a kid to save a marriage. To me regardless of the end result the children end up becoming a yo yo going from house to house. That won’t benefit them at all.

Though I’m a NJ resident I’m not sure what the laws are as my wife and I never got that far when investigating sperm donation, so I apologize for not being able to provide more insight.

Yes and no? In this case it appears to me there was a written agreement–which is certainly close to a contract if it isn’t there. It just turned out to have no force given the appeal to genetic connection. that’s rather a trap–you make a contract thinking it has value and it does not.

To be clear, you would get a different result in other places. In some states a contract might or would be given force. (I think Pennsylvania is one?)

If you do enforce contracts then it seems to me that you are saying that genetics is not paramount–because specific intent (as recorded in a contract) controls even in the face of genetic linkage. The fact that the written agreement proves to be without meaning here suggests to me that at least for this judge in NJ, genetics is more important than intention. Unless, of course, you use a doctor……

That could be the historical origin of the requirement. As I just noted, it was initially used by heterosexual couples who were already working with fertility doctors so it probably seemed a natural outgrowth?

it seems that the confusion arises from the law that was crafted to facilitate sperm donation in particular circumstances- heterosexual married couples secretly using sperm donated by anonymous men- is now being applied to other more wide ranging circumstances.

That is likely part of it. Heterosexual couples who end up using third party sperm are generally already under the care of fertility doctors because they are trying to figure out why they cannot conceive on their own. Different with lesbian couples and single women. It’s also possible that insemination–which can be pretty low-tech–got generaly “medicalized” and became an income source for doctors and who wants to let that go.

But really, the use of a doctor to perform the insemination doesn’t seem to have much to do with whether the genetic connection or the intent of the parties should control.

really the requirement to have a dr is no more arbitrary than the exclusion of sexual intercourse from the sperm donor law. from the kids perspective it should make no difference but because in mainsstream culture sex is so strongly associated with paternity it would have been out of synch with the culture to craft any law declaring otherwise. (it sometimes appears to me that due to the nature of your work you’ve become a bit out of touch with mainstream family building culture, but of course you might think the same thing of me…. 😉 doctors are associated with medical procedures and are thought to be as far removed from sex as can be. the involvement of a dr creates the illusion of a fertility treatment. having a guy you know hand you a cup of fresh sperm is less easy to disguise as medical and more closely approaches sex for many people.

Perhaps–though I don’t know the costs differences, really. Perhaps some people who are price sensitive simply think it is a pointless expense when one can do it just as well at home? (That would be if one doesn’t realize the consequences that follow.)

“The men signed agreements relinquishing rights, which means that they intended to be donors and not legal parents. But they changed their minds and apparently, under NJ law, they are entitled to do so. The question is why they are entitled to do so.”

one could also phrase the question as why they were able to sign away their rights in the first place…. the questions we choose to ask can say a lot about the outcome we prefer

It is certainly true that you can ask a lot of different questions and I also agree the questions we choose to ask can be revealing. These general points are important.

I’ll only add a small piece here to help explain my phrasing–it looks to me like they weren’t actually able to sign away their rights at all. All the people involved thought they were–and they did sign a paper that said this was what they were doing. But the paper is, I gather, without legal effect.

Of course, thinking about it this way may raise more question and perhaps undermines what I said earlier. NJ doesn’t really allow them to change their minds. NJ seems to say that what is in their minds doesn’t matter. But from the perspective of the people involved I can see how it must look like they changed their minds.

But Julie even with a doctor involved all the agreements I’ve read (and I have a big collection of them now), say pretty much the same thing – that the agreement is not legally enforceable but that everyone agrees to behave as if the agreement were enforceable. Also common is a sentence that says something about if the agreement is ever determined to be against public policy the donor promises to go to court and give the child up for adoption. And that is the skipped part in all this – the adoption. They short cut it. Sounds to me like all the agreements acknowledge that the adoption has been short cut and that they’ll only do it if they have to.

I cannot say anything about the agreements you’ve read. It is true that in many places the agreements aren’t enforceable–the man who provides the sperm is or is not a legal parent based on the law and the agreement does nothing. (States fall on both sides of this line.) But there are also some states where the agreement DOES mean something–where a man is/is not a parent in the absence of an agreement, so that IF there is an agreement it CAN control.

It’s got to be confusing to people and I’m sure many people run afoul of this–that in some places agreements make a difference and in some places they do not and in some places they make a difference if there is a doctor and in some places……You get the idea. There’s no uniformity.

A donor and the child should always have the right to establish a healthy relationship. I’m not convinced that a donor should receive custody rights, but visitation should most definitely be allowed to occur. The more people who love and care for a child the better. But, the two people who intended to be parents are the ones who should retain legal custody.

One issue this comment raises–one that is recurrent here–is the limited statuses recognized in our legal system. Generally you are a parent–with full legal rights–or you are not a parent. And if you are not a parent, you have only those rights a parent will let you have, basically. The possibility of another role has come up before and perhaps that is what you are pointing towards.

I see the solution you’re proposing but for me the question is what lies underneath it. Should the primary determinant of legal parenthood be intention? That’s perfectly possible and seems to be suggested by the last sentence. It’s the most common rule for children conceived via ART, to the extent there are separate rules for those children.

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Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.